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Criminal Justice and Courts Bill (HL Bill 30)

Criminal Justice and Courts BillPage 60

(a) evidence presented in the proceedings on the issue, or

(b) other information provided to the jury or a juror during the trial
period by, or with the permission of, the judge dealing with the
issue.

(3) 5A person guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for a term not exceeding 2 years or a
fine (or both).

(4) Proceedings for an offence under this section may not be instituted
except by or with the consent of the Attorney General.

(5) 10In this section, “the trial period” has the same meaning as in section
20A.

58 Jurors engaging in other prohibited conduct

In the Juries Act 1974, after section 20B insert—

20C Offence: jurors engaging in other prohibited conduct

(1) 15It is an offence for a member of a jury that tries an issue in a case before
a court intentionally to engage in prohibited conduct during the trial
period, subject to the exceptions in subsections (4) and (5).

(2) “Prohibited conduct” means conduct from which it may reasonably be
concluded that the person intends to try the issue otherwise than on the
20basis of the evidence presented in the proceedings on the issue.

(3) An offence under this section is committed whether or not the person
knows that the conduct is prohibited conduct.

(4) It is not an offence under this section for a member of the jury to
research the case (as defined in section 20A(2) to (4)).

(5) 25It is not an offence under this section for a member of the jury to
disclose information to another member of the jury.

(6) A person guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for a term not exceeding 2 years or a
fine (or both).

(7) 30Proceedings for an offence under this section may not be instituted
except by or with the consent of the Attorney General.

(8) In this section, “the trial period” has the same meaning as in section
20A.

59 Disclosing jury’s deliberations

(1) 35In the Juries Act 1974, after section 20C insert—

20D Offence: disclosing jury’s deliberations

(1) It is an offence for a person intentionally—

(a) to disclose information about statements made, opinions
expressed, arguments advanced or votes cast by members of a
40jury in the course of their deliberations in proceedings before a
court, or

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(b) to solicit or obtain such information,

subject to the exceptions in sections 20E to 20G.

(2) A person guilty of an offence under this section is liable, on conviction
on indictment, to imprisonment for a term not exceeding 2 years or a
5fine (or both).

(3) Proceedings for an offence under this section may not be instituted
except by or with the consent of the Attorney General.

20E Offence of disclosing jury’s deliberations: initial exceptions

(1) It is not an offence under section 20D for a person to disclose
10information in the proceedings mentioned in section 20D(1) for the
purposes of enabling the jury to arrive at their verdict or in connection
with the delivery of that verdict.

(2) It is not an offence under section 20D for the judge dealing with those
proceedings to disclose information—

(a) 15for the purposes of dealing with the case, or

(b) for the purposes of an investigation by a relevant investigator
into whether an offence or contempt of court has been
committed by or in relation to a juror in the proceedings
mentioned in section 20D(1).

(3) 20It is not an offence under section 20D for a person who reasonably
believes that a disclosure described in subsection (2)(b) has been made
to disclose information for the purposes of the investigation.

(4) It is not an offence under section 20D to publish information disclosed
as described in subsection (1) or (2)(a) in the proceedings mentioned in
25section 20D(1).

(5) In this section—

  • “publish” means make available to the public or a section of the
    public;

  • “relevant investigator” means—

    (a)

    30a police force;

    (b)

    the Attorney General;

    (c)

    any other person or class of person specified by the Lord
    Chancellor for the purposes of this section by
    regulations made by statutory instrument.

(6) 35The Lord Chancellor must obtain the consent of the Lord Chief Justice
before making regulations under this section.

(7) A statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
Parliament.

20F 40Offence of disclosing jury’s deliberations: further exceptions

(1) It is not an offence under section 20D for a person to disclose
information to a person listed in subsection (2) if—

(a) the disclosure is made after the jury in the proceedings
mentioned in section 20D(1) has been discharged, and

(b) 45the person making the disclosure reasonably believes that—

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(i) an offence or contempt of court has been, or may have
been, committed by or in relation to a juror in
connection with those proceedings, or

(ii) conduct of a juror in connection with those proceedings
5may provide grounds for an appeal against conviction
or sentence.

(2) Those persons are—

(a) a member of a police force;

(b) a judge of the Court of Appeal;

(c) 10the registrar of criminal appeals;

(d) a judge of the court where the proceedings mentioned in section
20D(1) took place;

(e) a member of staff of that court who would reasonably be
expected to disclose the information only to a person mentioned
15in paragraphs (b) to (d).

(3) It is not an offence under section 20D for a member of a police force to
disclose information for the purposes of obtaining assistance in
deciding whether to submit the information to a judge of the Court of
Appeal or the registrar of criminal appeals, provided that the
20disclosure does not involve publishing the information.

(4) It is not an offence under section 20D for a judge of the Court of Appeal
or the registrar of criminal appeals to disclose information for the
purposes of an investigation by a relevant investigator into—

(a) whether an offence or contempt of court has been committed by
25or in relation to a juror in connection with the proceedings
mentioned in section 20D(1), or

(b) whether conduct of a juror in connection with those
proceedings may provide grounds for an appeal against
conviction or sentence.

(5) 30It is not an offence under section 20D for a judge of the Court of Appeal
or the registrar of criminal appeals to disclose information for the
purposes of enabling or assisting—

(a) a person who was the defendant in the proceedings mentioned
in section 20D(1), or

(b) 35a legal representative of such a person,

to consider whether conduct of a juror in connection with those
proceedings may provide grounds for an appeal against conviction or
sentence.

(6) It is not an offence under section 20D for a person who reasonably
40believes that a disclosure described in subsection (4) or (5) has been
made to disclose information for the purposes of the investigation or
consideration in question.

(7) It is not an offence under section 20D for a person to disclose
information in evidence in—

(a) 45proceedings for an offence or contempt of court alleged to have
been committed by or in relation to a juror in connection with
the proceedings mentioned in section 20D(1),

(b) proceedings on an appeal, or an application for leave to appeal,
against a decision in the proceedings mentioned in section

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20D(1) where an allegation relating to conduct of or in relation
to a juror forms part of the grounds of appeal, or

(c) proceedings on any further appeal or reference arising out of
proceedings mentioned in paragraph (a) or (b).

(8) 5It is not an offence under section 20D for a person to disclose
information in the course of taking reasonable steps to prepare for
proceedings described in subsection (7)(a) to (c).

(9) It is not an offence under section 20D to publish information disclosed
as described in subsection (7).

(10) 10In this section—

  • “publish” means make available to the public or a section of the
    public;

  • “relevant investigator” means—

    (a)

    a police force;

    (b)

    15the Attorney General;

    (c)

    the Criminal Cases Review Commission;

    (d)

    the Crown Prosecution Service;

    (e)

    any other person or class of person specified by the Lord
    Chancellor for the purposes of this section by
    20regulations made by statutory instrument.

(11) The Lord Chancellor must obtain the consent of the Lord Chief Justice
before making regulations under this section.

(12) A statutory instrument containing regulations under this section is
subject to annulment in pursuance of a resolution of either House of
25Parliament.

20G Offence of disclosing jury’s deliberations: exceptions for soliciting
disclosures or obtaining information

(1) It is not an offence under section 20D to solicit a disclosure described in
section 20E(1) to (4) or section 20F(1) to (9).

(2) 30It is not an offence under section 20D to obtain information—

(a) by means of a disclosure described in section 20E(1) to (4) or
section 20F(1) to (9), or

(b) from a document that is available to the public or a section of the
public.

(2) 35In the Contempt of Court Act 1981, as it extends to England and Wales, section
8 (confidentiality of jury’s deliberations) is repealed.

(3) In section 8(1) of that Act, as it extends to Scotland and Northern Ireland, at the
beginning insert “In Scotland and Northern Ireland,”.

(4) In the heading of that section, at the end insert “: Scotland and Northern
40Ireland”.

60 Juries at inquests

Schedule 9 makes provision about juries at inquests and their deliberations.

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61 Members of the Court Martial

Schedule 10 makes provision about members of the Court Martial and their
deliberations.

62 Supplementary provision

(1) 5In Schedule 1 to the Juries Act 1974 (persons disqualified for jury service), after
paragraph 6 insert—

6A A person who at any time in the last ten years has been convicted
of—

(a) an offence under section 20A, 20B, 20C or 20D of this Act,

(b) 10an offence under paragraph 5A, 5B, 5C or 5D of Schedule 6 to
the Coroners and Justice Act 2009 (equivalent offences
relating to jurors at inquests), or

(c) an offence under paragraph 2, 3, 4 or 5 of Schedule 2A to the
Armed Forces Act 2006 (equivalent offences relating to
15members of the Court Martial).

(2) In section 22 of the Juries Act 1974 (consequential amendments, savings and
repeals), at the beginning insert—

(A1) Nothing in section 20A, 20B or 20C affects what constitutes contempt of
court at common law.

20Other matters

63 Minor amendments

(1) In section 132(4A) of the Powers of Criminal Courts (Sentencing) Act 2000
(compensation orders: appeals etc), for “House of Lords” substitute “the
Supreme Court”.

(2) 25In section 13(6A)(a) of the Tribunals, Courts and Enforcement Act 2007 (rules
of court about when the Court of Session may grant permission to appeal
against a decision of the Upper Tribunal), after “principle” insert “or practice”.

Part 4 Judicial review

30Judicial review in the High Court and Upper Tribunal

64 Likelihood of substantially different outcome for applicant

(1) In section 31 of the Senior Courts Act 1981 (applications for judicial review),
after subsection (2) insert—

(2A) The High Court—

(a) 35must refuse to grant relief on an application for judicial review,
and

(b) may not make an award under subsection (4) on such an
application,

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if it appears to the court to be highly likely that the outcome for the
applicant would not have been substantially different if the conduct
complained of had not occurred.

(2) In that section, before subsection (4) insert—

(3B) 5When considering whether to grant leave to make an application for
judicial review, the High Court—

(a) may of its own motion consider whether the outcome for the
applicant would have been substantially different if the conduct
complained of had not occurred, and

(b) 10must consider that question if the defendant asks it to do so.

(3C) If, on considering that question, it appears to the High Court to be
highly likely that the outcome for the applicant would not have been
substantially different, the court must refuse to grant leave.

(3) In that section, after subsection (7) insert—

(8) 15In this section “the conduct complained of”, in relation to an application
for judicial review, means the conduct (or alleged conduct) of the
defendant that the applicant claims justifies the High Court in granting
relief.

(4) In section 15 of the Tribunals, Courts and Enforcement Act 2007 (the Upper
20Tribunal’s “judicial review” jurisdiction), after subsection (5) insert—

(5A) In cases arising under the law of England and Wales, section 31(2A) of
the Senior Courts Act 1981 applies to the Upper Tribunal when
deciding whether to grant relief under subsection (1) as it applies to the
High Court when deciding whether to grant relief on an application for
25judicial review.

(5) In section 16 of the Tribunals, Courts and Enforcement Act 2007 (application
for relief under section 15(1)), before subsection (4) insert—

(3B) In cases arising under the law of England and Wales, when considering
whether to grant permission to make the application, the tribunal—

(a) 30may of its own initiative consider whether the outcome for the
applicant would have been substantially different if the conduct
complained of had not occurred, and

(b) must consider that question if the respondent asks it to do so.

(3C) In subsection (3B) “the conduct complained of” means the conduct (or
35alleged conduct) of the respondent that the applicant claims justifies
the tribunal in granting relief.

(3D) If, on considering the question mentioned in subsection (3B)(a) and (b),
it appears to the tribunal to be highly likely that the outcome for the
applicant would not have been substantially different, the tribunal
40must refuse to grant permission.

(6) In that section, after subsection (6) insert—

(6A) In cases arising under the law of England and Wales, section 31(2A) of
the Senior Courts Act 1981 applies to the Upper Tribunal as regards the
making of an award under subsection (6) as it applies to the High Court
45as regards the making of an award under section 31(4) of the Senior
Courts Act 1981.

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65 Provision of information about financial resources

(1) In section 31(3) of the Senior Courts Act 1981 (applications for leave to apply
for judicial review)—

(a) after “unless” insert “—

(a), and

(b) at the end insert , and

(b) the applicant has provided the court with any
information about the financing of the application that is
specified in rules of court for the purposes of this
10paragraph.

(2) In that section, after subsection (3) insert—

(3A) The information that may be specified for the purposes of subsection
(3)(b) includes—

(a) information about the source, nature and extent of financial
15resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate
that it is likely to have financial resources available to meet such
liabilities, information about its members and about their ability
20to provide financial support for the purposes of the
application.

(3) In section 16(3) of the Tribunals, Courts and Enforcement Act 2007
(applications for permission or leave to apply for relief under section 15(1):
Upper Tribunal’s “judicial review” jurisdiction)—

(a) 25after “unless” insert “—

(a), and

(b) at the end insert , and

(b) in cases arising under the law of England and Wales, the
applicant has provided the tribunal with any
30information about the financing of the application that is
specified in Tribunal Procedure Rules for the purposes
of this paragraph.

(4) In that section, after subsection (3) insert—

(3A) The information that may be specified for the purposes of subsection
35(3)(b) includes—

(a) information about the source, nature and extent of financial
resources available, or likely to be available, to the applicant to
meet liabilities arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate
40that it is likely to have financial resources available to meet such
liabilities, information about its members and about their ability
to provide financial support for the purposes of the
application.

66 Use of information about financial resources

(1) 45This section applies when the High Court, the Upper Tribunal or the Court of
Appeal is determining by whom and to what extent costs of or incidental to
judicial review proceedings are to be paid.

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(2) The information to which the court or tribunal must have regard includes—

(a) information about the financing of the proceedings provided in
accordance with section 31(3)(b) of the Senior Courts Act 1981 or
section 16(3)(b) of the Tribunals, Courts and Enforcement Act 2007, and

(b) 5any supplement to that information provided in accordance with rules
of court or Tribunal Procedure Rules.

(3) The court or tribunal must consider whether to order costs to be paid by a
person, other than a party to the proceedings, who is identified in that
information as someone who is providing financial support for the purposes of
10the proceedings or likely or able to do so.

(4) In this section “judicial review proceedings” means—

(a) proceedings on an application for leave to apply for judicial review,

(b) proceedings on an application for judicial review,

(c) proceedings on an application for permission to apply for relief under
15section 15 of the Tribunals, Courts and Enforcement Act 2007 in a case
arising under the law of England and Wales,

(d) proceedings on an application for such relief in such a case,

(e) any proceedings on an application for leave to appeal from a decision
in proceedings described in paragraph (a), (b), (c) or (d), and

(f) 20proceedings on an appeal from such a decision.

67 Interveners and costs

(1) This section applies where, in judicial review proceedings, a person other than
a relevant party to the proceedings (an “intervener”) is granted permission to
file evidence or make representations in the proceedings.

(2) 25A relevant party to the proceedings may not be ordered by the High Court or
the Court of Appeal to pay the intervener’s costs in connection with the
proceedings.

(3) Subsection (2) does not prevent the court making an order if it considers that
there are exceptional circumstances that make it appropriate to do so.

(4) 30On an application to the High Court or the Court of Appeal by a relevant party
to the proceedings, the court must order the intervener to pay any costs
specified in the application that the court considers have been incurred by that
party as a result of the intervener’s involvement in the proceedings.

(5) Subsection (4) does not require the court to make an order if it considers that
35there are exceptional circumstances that make it inappropriate to do so.

(6) In determining whether there are exceptional circumstances that are relevant
for the purposes of subsection (3) or (5), the court must have regard to criteria
specified in rules of court.

(7) In this section, “judicial review proceedings” means—

(a) 40proceedings on an application for leave to apply for judicial review,

(b) proceedings on an application for judicial review,

(c) any proceedings on an application for leave to appeal from a decision
in proceedings described in paragraph (a) or (b), and

(d) proceedings on an appeal from such a decision.

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(8) For the purposes of this section, “a relevant party” to judicial review
proceedings means any of the following—

(a) the applicant and the defendant,

(b) in the case of proceedings on an appeal, the appellant and the
5respondent, and

(c) any other person who is directly affected by the proceedings and on
whom the application for judicial review, or for leave to apply for
judicial review, has been served.

68 Capping of costs

(1) 10A costs capping order may not be made by the High Court or the Court of
Appeal in connection with judicial review proceedings except in accordance
with this section and sections 69 and 70.

(2) A “costs capping order” is an order limiting or removing the liability of a party
to judicial review proceedings to pay another party’s costs in connection with
15any stage of the proceedings.

(3) The court may make a costs capping order only if leave to apply for judicial
review has been granted.

(4) The court may make a costs capping order only on an application for such an
order made by the applicant for judicial review in accordance with rules of
20court.

(5) Rules of court may, in particular, specify information that must be contained in
the application, including—

(a) information about the source, nature and extent of financial resources
available, or likely to be available, to the applicant to meet liabilities
25arising in connection with the application, and

(b) if the applicant is a body corporate that is unable to demonstrate that it
is likely to have financial resources available to meet such liabilities,
information about its members and about their ability to provide
financial support for the purposes of the application.

(6) 30The court may make a costs capping order only if it is satisfied that—

(a) the proceedings are public interest proceedings,

(b) in the absence of the order, the applicant for judicial review would
withdraw the application for judicial review or cease to participate in
the proceedings, and

(c) 35it would be reasonable for the applicant for judicial review to do so.

(7) The proceedings are “public interest proceedings” only if—

(a) an issue that is the subject of the proceedings is of general public
importance,

(b) the public interest requires the issue to be resolved, and

(c) 40the proceedings are likely to provide an appropriate means of resolving
it.

(8) The matters to which the court must have regard when determining whether
proceedings are public interest proceedings include—

(a) the number of people likely to be directly affected if relief is granted to
45the applicant for judicial review,

(b) how significant the effect on those people is likely to be, and

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(c) whether the proceedings involve consideration of a point of law of
general public importance.

(9) The Lord Chancellor may by regulations amend this section by adding,
omitting or amending matters to which the court must have regard when
5determining whether proceedings are public interest proceedings.

(10) Regulations under this section are to be made by statutory instrument.

(11) A statutory instrument containing regulations under this section may not be
made unless a draft of the instrument has been laid before, and approved by a
resolution of, each House of Parliament.

(12) 10In this section and sections 69 and 70—

  • “costs capping order” has the meaning given in subsection (2);

  • “the court” means the High Court or the Court of Appeal;

  • “judicial review proceedings” means—

    (a)

    proceedings on an application for leave to apply for judicial
    15review,

    (b)

    proceedings on an application for judicial review,

    (c)

    any proceedings on an application for leave to appeal from a
    decision in proceedings described in paragraph (a) or (b), and

    (d)

    proceedings on an appeal from such a decision,

    20and the proceedings described in paragraphs (a) to (d) are “stages” of
    judicial review proceedings.

(13) For the purposes of this section and section 69, in relation to judicial review
proceedings—

(a) the applicant for judicial review is the person who is or was the
25applicant in the proceedings on the application for judicial review, and

(b) references to relief being granted to the applicant for judicial review
include the upholding on appeal of a decision to grant such relief at an
earlier stage of the proceedings.

69 Capping of costs: orders and their terms

(1) 30The matters to which the court must have regard when considering whether to
make a costs capping order in connection with judicial review proceedings,
and what the terms of such an order should be, include—

(a) the financial resources of the parties to the proceedings, including the
financial resources of any person who provides, or may provide,
35financial support to the parties;

(b) the extent to which the applicant for the order is likely to benefit if relief
is granted to the applicant for judicial review;

(c) the extent to which any person who has provided, or may provide, the
applicant with financial support is likely to benefit if relief is granted to
40the applicant for judicial review;

(d) whether legal representatives for the applicant for the order are acting
free of charge;

(e) whether the applicant for the order is an appropriate person to
represent the interests of other persons or the public interest generally.

(2) 45A costs capping order that limits or removes the liability of the applicant for
judicial review to pay the costs of another party to the proceedings if relief is